China's Shifting Sands in the Spratlys

Issue:

15

Volume:

19

By:

J. Ashley Roach

Date:

July 15, 2015

Introduction

Since 2014 China has been constructing features atop seven coral reefs in the disputed Spratly/Nansha Islands of the South China Sea by dredging sand and coral from existing coral reefs. At last count China's new features total more than 2,000 acres.[1]

This activity has produced much commentary.[2] However, none of the commentary addresses all of the issues arising under international law from this activity. This Insight discusses all of those legal issues: (1) the zonal entitlements of each feature; (2) the zonal entitlements of each of the constructed features (artificial islands); (3) Chinese and U.S. claims as to use of the airspace and water within 12 nautical miles (nm) of the features; (4) the effect of China's construction on the Philippine arbitration with China, including the construction of lighthouses on some of them; (5) China's tu quoque defense that other claimants have done the same thing; (6) whether China's reclamation and construction is consistent with the Declaration on the Conduct of Parties in the South China Sea (DOC) and the consistency of China's position on DOC vis-à-vis the Philippines; (7) the parties' obligation not to tamper with the evidence; and (8) the reclamations' compliance with international environmental law. This Insight examines each of these issues in turn.

The Spratly/Nansha Features in Question

Public reports of China's activities from satellite imagery show the seven reefs on which China has been filling and constructing are Hughes Reef, Mischief Reef, Subi Reef, Fiery Cross Reef, Gaven Reefs, Johnson South Reef, and Cuarteron Reef.[3] Satellite imagery shows that the dredging has been from ten other reefs as well as these seven.

Given that each of the seven reefs are naturally formed areas of coral surrounded by water,[4] the maritime zonal entitlements of each reef depends on whether it is (1) above water at all times, and can sustain human habitation or have an economic life of its own, in which case it is a "full-fledged island"; (2) above water at all times but cannot sustain human habitation or have an economic life of its own, known as a "rock"; (3) below high tide but above water at low tide, known as a "low-tide elevation" (or LTE); or (4) below water at all times.

What are the Maritime Zonal Entitlements of the Features?

If the feature is what I call a "full-fledged island," it is entitled to a full suite of maritime zones[5] and subject to sovereignty claims.[6] This includes a 12 nm territorial sea, a 200 nm exclusive economic zone (EEZ), and a continental shelf.

If the feature is above water at all times, no matter how small, but cannot sustain human habitation or economic life of its own, it is a rock, and subject to sovereignty claims.[7] A rock is entitled to a territorial sea but no EEZ or continental shelf of its own.[8]

If the feature is a low-tide elevation, it has no maritime zone of its own, but if it lies within 12 nm of an island, it may be used as a basepoint for extending seaward the territorial sea of the island.[9] Sovereignty over an LTE lying within the territorial sea of an island belongs to whoever has sovereignty over the island.[10] However, no LTE is subject to appropriation (i.e., sovereignty claim).[11]

If the feature is below water at all times, it generates no maritime zone of its own and is not subject to appropriation (i.e., claim of sovereignty).[12] This follows from the principle that "the land dominates the sea," (i.e., maritime rights derive from the coastal state's sovereignty over land).[13]

What then is the Legal Status of the Seven Features?

There does not appear to be agreement as to the legal status of all of these features, but there seems to be agreement as to some of them, as set out below. Of note is the assertion by the Philippines in its arbitration case brought against China in 2013 that "[n]one of the Spratly features occupied by China is capable of sustaining human habitation or an economic life of its own,"[14] (i.e., that they are no more than rocks).

Gaven Reef, Hughes Reef, Mischief Reef, and Subi Reef: The Philippine claim against China lists these four features as below water at high tide[15] and not capable of a separate claim of sovereignty.[16] The 2011 Digital Gazetteer of the Spratly Islands, which lists all Spratly features known to be occupied and/or above water at low tide and the sources it cites, agrees, identifying these four features as LTEs.[17] Mischief Reef and Subi Reef are more than 12 nm from any island and cannot be used as basepoints.

Fiery Cross Reef, Johnson South Reef, and Cuarteron Reef: The Philippine claim against China lists these three features as rocks above water at high tide.[18] The 2011 Digital Gazetteer of the Spratly Islands, disagrees, identifying these three features as LTEs.[19]

It has been reported that Johnson South Reef is less than 4 nm from Collins Reef and less than 12 nm from Sin Cowe Island, and that Cuarteron Reef is less than 12 nm from London East Reef; Collins Reef, Sin Cowe Island, and London East Reef are occupied by Vietnam.[20] If those distances are correct, the three reefs could be used as basepoints.

If any of the seven features is a rock, it would be entitled to a 12 nm territorial sea. However, it appears that neither a territorial sea nor baselines have been effectively claimed around any of the seven features.[21]

What are the Entitlements of Artificial Islands?

The constructions on the Spratly/Nansha LTEs and fully submerged features are known as "artificial islands," which do not possess the status of islands.[22] They have no territorial sea of their own and their presence does not affect the delimitation of the territorial sea, the EEZ, or the continental shelf.[23] While artificial islands are not subject to sovereignty claims,[24] the coastal state has the exclusive right to construct and to regulate their construction, operation, and use.[25] The coastal state has exclusive jurisdiction over them.[26] The coastal state is permitted, where necessary to establish reasonable safety zones around them, normally not to exceed 500 meters radius from the outer edges of the artificial island.[27]

Artificial islands and their safety zones may not be established where interference may be caused to the use of recognized sea lanes essential to international navigation.[28]

As they do not have the status of islands and have no territorial sea of their own, artificial islands do not change the legal status of the features on which they are constructed. For example, an artificial island constructed on a submerged feature or LTE has no territorial sea around either feature[29] and is not subject to appropriation (i.e., sovereignty), although the coastal state has jurisdiction over the artificial island itself.[30]

The construction of lighthouses on these artificial islands, as has been reported,[31] has no effect on their zonal entitlements or sovereignty.[32]

As to the seven features in the Spratly/Nansha Islands and the artificial islands being constructed on them, who is the coastal state having jurisdiction over the artificial islands and any sovereignty over the features on which they are constructed is disputed in each case, and the Law of the Sea Convention (LOS Convention) provides no rules for making that decision. Rather, international courts and tribunals have clarified the rules for making that decision in those cases where all the disputants consent to the jurisdiction of the court or tribunal.[33] In the case of the Spratly/Nansha there has been no such agreement.[34]

China's Sovereignty Claims

China routinely claims that it "has indisputable sovereignty over the Nansha [Spratly] Islands and their adjacent waters."[35] This continues even though it is facially false, given the repeatedly strong claims of sovereignty by the other claimants, including the Philippines and Vietnam.[36] The sovereignty over the Spratly features is indisputably disputed.[37]

China appears to have recently asserted its claim that the airspace over the artificial islands is Chinese sovereign airspace in which no one may overfly without its permission. China has most recently demanded that U.S. military aircraft not fly in its airspace.[38] A U.S. Department of Defense (U.S. DoD) spokesman on May 21, 2015 asserted the U.S. does not "navigate" within 12 nm of any of these features.[39] Since nothing in the provisions of the LOS Convention on artificial islands (Article 60) regulate overflight of artificial islands, and the features are either not entitled to a territorial sea or no territorial sea has been effectively claimed around them, the U.S. DoD statement appears to reflect either a deliberate decision made for other reasons (e.g., policy discretion, not opinio juris) or a non-lawyer spokesperson's lack of knowledge of the law as applied to the nature of the features in question.[40]

China's tu quoque Defense

China claims that its dredging and filling in the Spratlys is simply catching up to the prior and continuing reclamations by Vietnam, the Philippines, and Taiwan.[41] There are several difficulties with this argument. First, the Vietnamese, Philippine, and Taiwan reclamations are qualitatively different from China's efforts, that is, they are not being done on LTEs or submerged features. One scholar has stated that the Vietnamese, Philippine, and Taiwan efforts are being conducted on features that are true islands, normal activities that are of a defensive nature, do not threaten regional peace and stability, and are not seeking to convert the features into islands.[42]

Second, their reclamations are quantitatively different. Vietnam's land reclamation amounts to 0.19% of the land created by China.[43] The Philippines built an airstrip on the second largest island in the Spratlys, Thitu (Pagasa), in the 1970s. Taiwan has constructed an airstrip on the largest island in the Spratlys, Itu Aba.

Third, unlike the recent reports of China broadcasting warnings to foreign military aircraft operating lawfully in international airspace to depart the "military alert zones" near these features,[44] no other claimant state involved in reclamation activities on Spratly features has issued such warnings.

Declaration of Code of Conduct in South China Sea

The 2002 non-binding DOC signed by China and the ASEAN states, including the Philippines, provides in part:

3. The Parties reaffirm their respect for and commitment to the freedom of navigation in and overflight above the South China Sea as provided for by the universally recognized principles of international law, including the 1982 UN Convention on the Law of the Sea.

* * * *

5. The Parties undertake to exercise self-restraint in the conduct of activities that would complicate or escalate disputes and affect peace and stability including, among others, refraining from action of inhabiting on the presently uninhabited islands, reefs, shoals, cays, and other features and to handle their differences in a constructive manner.

* * * *

8. The Parties undertake to respect the provisions of this Declaration and take actions consistent therewith.[45]

It is evident that China has not complied with these provisions of the DOC. However, China's Position Paper of December 7, 2014 asserts that, in addition to bilateral undertakings by the Philippines and China, the DOC is legally binding on the Philippines, in an effort to support its claim that the tribunal has no jurisdiction over the Philippines claim.[46] By this reasoning China's dredging and fillings are violations of its legally binding undertakings in the DOC and its obligation to act in good faith. It should be noted that most of the reclamations by Vietnam, the Philippines and Taiwan predate the DOC.

Effect on the Philippines-China Arbitration

In this arbitration the Philippines requests that the tribunal:

Declare that Mischief Reef is a submerged feature that forms part of the continental shelf of the Philippines under Part VI of the LOS Convention;

Require that China end its occupation of and activities on Mischief Reef;

Declare that Gaven Reef and Subi Reef are submerged features in the South China Sea that are not above sea level at high tide, are not islands under the LOS Convention, and are not located on China's continental shelf, and that China's occupation of and construction activities on these features are unlawful;

Require China to terminate its occupation of and activities on Gaven Reef and Subi Reef;

Declare that Johnson Reef, Cuarteron Reef, and Fiery Cross Reef are submerged features that are below sea level at high tide, except for small protrusions which are "rocks" under Article 121(3) of the LOS Convention and which therefore generate entitlements only to a territorial sea no broader than 12 nm, and that China has unlawfully claimed maritime entitlements beyond 12 nm from these features.[47]

China's dredging and filling on these features make it impossible for the tribunal to evaluate firsthand the physical nature of the features. Some have asserted that this amounts to tampering with the evidence.[48] This activity is not likely to be viewed favorably by the members of the tribunal. In its Order on Malaysia's Request for Provisional Measures in the Land Reclamation Case in the Straits of Johor, the International Tribunal for the Law of the Sea (ITLOS) noted "the obligation of the parties not to aggravate the dispute pending its settlement," and that "the parties have the obligation not to create an irremediable situation and in particular not to frustrate the purpose" of the arbitration.[49]

Compliance of China's Reclamation Efforts with International Environmental Law

The Chinese Foreign Ministry has asserted that its reclamation work "is lawful . . . [and] does not impact or target any country, and is thus beyond reproach." The spokesperson added:

China's construction projects on the islands and reefs have gone through scientific assessments and rigorous tests. We put equal emphasis on construction and protection by following a high standard of environmental protection and taking into full consideration the protection of ecological environment and fishing resources. The ecological environment of the South China Sea will not be damaged. We will take further steps in the future to monitor and protect the ecological environment of relevant waters, islands and reefs.[50]

Experts and others disagree with China's assertion.[51] For example, one report states:

China's piling of sand on atolls and rocks in the Spratlys has disrupted an already fragile marine ecosystem. The area, which hosts part of Southeast Asia's most productive coral reef ecosystems, has long been known as a treasure trove of biological resources. Fish breed and replenish in these reefs and migrate across vast distances to and from littoral coasts as they follow plankton and other organisms in the water. . . . The prospect of a reef apocalypse in the South China Sea should weigh heavily on claimant countries, all of which need to rely on fish protein to feed a burgeoning population of roughly 1.9 billion people.[52]

International law is pretty clear as to states' duties in this regard. States have the obligation to protect and preserve the marine environment.[53] States are further obligated to take measures necessary to protect and preserve rare or fragile ecosystems as well as the habitat of depleted, threatened, or endangered species and other form of marine life.[54] States are also required to conduct environmental assessments and publicize their results.[55] The International Court of Justice has stated that the "general obligation of States to ensure that activities under their jurisdiction and control respect the environment or other States or of areas beyond national control is now part of the corpus of international law relating to the environment."[56] The Seabed Disputes Chamber of ITLOS concurs.[57] China's assessment has not been made public.

J. Ashley Roach, an ASIL member, Captain, JAGC, USN (retired), Office of the Legal Adviser, U.S. Department of State (retired), is a Global Associate and Senior Visiting Scholar at the Centre for International Law (CIL) (2014–2015), National University of Singapore. The views expressed in the Insight are not intended to reflect the position of any government. Thanks to the CIL oceans team and former colleagues at State, Defense, and elsewhere for their helpful comments.

[12] James Crawford, Brownlie's Principles of Public International Law 262 (8th ed. Oxford 2012) ("Permanently submerged banks and reefs generally do not produce a territorial sea"). This was written before the ICJ said, supra note 11, that LTEs are not subject to appropriation. It follows that no submerged feature is subject to appropriation.

[21] LOS Convention, supra note 4, art. 16(2) requires due publicity and depositing charts/coordinates of the territorial sea and/or straight baseline with the UN. China has done so for its straight baselines along its mainland coast, Hainan Island, the Paracels, Beibu Bay/Tonkin Gulf, and Diaoyu Dao/Senkakus, but not any of the Spratlys. SeeChina, Maritime Space: Maritime Zones and Maritime Delimitation, http://www.un.org/Depts/los/LEGISLATIONANDTREATIES/STATEFILES/CHN.htm (last visited July 9, 2015). The other claimants also have not deposited charts or coordinates for the Spratlys but have done so for some of their other claimed baselines or boundaries. See Maritime Zone Notification, Maritime Space: Maritime Zones and Maritime Delimitation, http://www.un.org/Depts/los/LEGISLATIONANDTREATIES/depositpublicity.htm (last visited July 9, 2015).

[32] Article 7(4) of the LOS Convention provides that straight baselines may not be drawn to and from LTEs unless lighthouses or similar installations which are permanently above water have been built on them. No baselines have been drawn for these features, and no straight baselines can be drawn on these features in compliance with Article 7.

[34] China has exercised its right in article 298(1)(a)(i) of the LOS Convention to opt out of the procedures entailing compulsory conciliation for sovereignty disputes associated with sea boundary disputes. The award in the Mauritius/United Kingdom arbitration noted that while neither of the parties had exercised its right under Article 298, it found that the Tribunal lacked jurisdiction because the dispute fundamentally involved a dispute of sovereignty over the Chagos Archipelago, not the application or interpretation of the LOS Convention as required by Article 288(1). In the Matter of the Chagos Marine Protected Area Arbitration (Mauritius v. U.K.), Award, ¶ 221 (Perm. Ct. Arb. 2015), available athttp://www.pca-cpa.org/showproj.asp?pag_id=1429.

[39] On May 21, 2015, a Pentagon spokesman insisted that U.S. military aircraft do not fly directly over areas claimed by China in the Spratly Islands. Simon Denyer, Beijing: U.S. Flight "Very Irresponsible," Wash. Post, May 23, 2015, at A6.

[40] See the discussion supra of zonal entitlements. Article 3 of China's Law on the Territorial Sea and the Contiguous Zone of February 25, 1992, permits only the drawing of straight baselines, and no straight baselines of the territorial sea have been promulgated for any of the Nansha Islands. There is no right of innocent passage over the territorial sea as there is for ships on the surface of the water. See Gregory Poling, Carter on the South China Sea: Committed and (Mostly) Clear, Asia Maritime Transparency Initiative (June 3, 2015), http://amti.csis.org/carter-on-the-south-china-sea-committed-and-mostly-clear/.

[46] Ministry of Foreign Affairs, Position Paper of the Government of the People's Republic of China on the Matter of Jurisdiction in the South China Sea Arbitration Initiated by the Republic of the Philippines ¶¶ 38, 53 (2014).

[49] Case Concerning Land Reclamation By Singapore In And Around The Straits Of Johor (Malay. v. Sing.), Case No. 12, Request for Provisional Measures, Order of October 8, 2003, 2003 ITLOS Rep. 10, 25. Beckman, infra note 51, has noted the Philippines' right to seek provisional measures pursuant to LOS Convention, Article 290. Beckman expands on that idea in his paper Robert Beckman, The Philippines v. China Case and Maritime Disputes in the South China Sea, 2015 ILA-ASIL Asia-Pacific Research Forum, Taipei ¶¶ 50–53 (2015), available atwww.cil.nus.edu.sg/wp/wp-content/uploads/2015/05/Beckman-Paper-2015-ILA-ASIL-Taiwan-draft-19-May.pdf.

[50] Hua Chuying's Press Conference, supra note 35. The assessments have not been made public.

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